Allardyce Lumber Company Ltd v Attorney-General [1989] SBHC 1; [1988-1989] SILR 78 (18 August 1989)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 93 of 1989

ALLARDYCE LUMBER COMPANY LIMITTED,
BISILI, RONI, SAKIRI, HIELE, SASAE, POZA,
ZONGAHITE, DAGA, PATO and ZINGIHITE

v

ATTORNEY GENERAL, COMMSSIONER OF FOREST RESOURCES,
PREMIER OF THE WESTERN PROVINCE and PAIA

(Ward C.J.)

Hearing: 17 May, 14 June, 21 June and 3 August 1989
Judgment: 18 August 1989

Forest Resources and Timber Utilisation Act - acquisition of timber rights under Part IIA - proper construction of section 5 - procedure for determining the persons entitled to grant timber rights - distinction between ownership of customary land and ownership of timber rights.

Facts:

Allardyce Lumber Company Ltd wished to commence logging operations on customary land known as Kazukuru Right Hand Land on New Georgia. Negotiations commenced in July 1987 with the tribal representatives of the landowners, with the exception of W.G. Paia, the father of the fourth defendant, and Bisili, the first of the second plaintiffs. Paia and Bisili commenced negotiations with Allardyce separately in November 1987, and as a result a Form I under the Forest Resources and Timber Utilisation Act was sent to Roviana Area Council naming Paia and Bisili and their lines as the persons with whom preliminary discussions had been made.

Other landowners objected to the fact that only Paia and Bisili had been named and Allardyce asked Paia and Bisili to reach agreement with all landowners. In February 1988 an agreement was reached and Sasae and Sakiri were appointed to represent the remaining person entitled to grant timber rights. The remaining persons were defined by reference to a Customary Land Appeal Court decision of 1984 which named 12 persons as being entitled to grant timber rights in Kazukuru Right Hand Land.

On 18 March 1988 the Roviana Area Council issued a Form II certificate naming the same 12 persons as the persons entitled to grant timber rights.

Subsequently differences arose between the various tribes involved, and in particular between the Voramali and Kalikogu tribes. The Kalikogu tribe wanted part of Kazukuru land to be excluded from the logging arrangements. Allardyce held a meeting in June 1988 to attempt to resolve the situation, however only 4 of the persons named in the Form 11 attended the meeting. Nevertheless, a standard form logging agreement in Form IV was drawn up and executed at that meeting and W.G. Paia stated that it had been agreed that the land claimed by the Kalikogu people would be excluded until the Kalikogu people agreed to it being logged.

Shortly after that meeting W.G. Paia died, and the Voramali tribe appointed the fourth defendant and Bisili as representatives of the tribe. From that time on, the fourth defendant claimed that his father had never agreed to the exclusion of the Kalikogu land because he had never acknowledged any claim to ownership by the Kalikogu. At the same time representatives of the Kalikogu also complained to Allardyce that they had not signed the Form IV. Notwithstanding these objections the Form IV was submitted to the Western Provincial Executive and the third defendant, then the Provincial Prime Minister and Minister of Natural Resources, approved the agreement on 30 August 1988.

In October 1988 Allardyce realised that in view of the disputes it would not be possible to have a licence issued and began the negotiation process again with a further meeting of the surviving members of the group of 12 people named in the 1984 CLAC decision at Munda in October 1988. At that meeting all 10 survivors agreed to withdraw all objections to the licence, and signed an agreement to execute a standard form logging agreement. A standard Form IV agreement was subsequently signed in November 1988, and delivered to the Commissioner of Forest Resources.

On 18 November a government officer wrote on behalf of the Commissioner asking the Area Council to appoint representatives of the two dead trustees and obtain their signature to the Form IV. On 21^st November, the same officer wrote to the Provincial Secretary asking him to obtain the Minister's signature to a Form III approving the agreement. The Area Council met on 23 November and appointed the fourth defendant and R. Mamu as representatives in place of the two deceased trustees.

On 25 November the fourth defendant wrote to the Chief Forestry Officer claiming that the whole agreement was illegal and that he would not agree to change the boundaries of Kazukuru land. On 6^th December he wrote in similar terms to the Area Council. Also in December, Allardyce asked the Commissioner of Forest Resources to take some action, and the 10 signatories to the agreement wrote to the Commissioner confirming that they had no objection to the proposed agreement. Notwithstanding this, the fourth defendant continued his objection to the issue of a licence, and the Permanent Secretary of the Ministry of Natural Resources advised AIlardyce to meet the Voramali tribe in order to settle the issue.

Considerable further correspondence took place but it proved impossible to resolve the difficulties raised by the fourth defendant. The fourth defendant claimed that the Voramali tribe owned the excluded land and that his father would never have acknowledged any claim to it by the Kalikogu tribe. He was willing to sign a logging agreement but only if the Kalikogu tribe lifted their claim to land rights over the exclusion area.

The plaintiffs accordingly brought an action in the High Court seeking declarations as follows:

2. It be declared that:-

(a) The Second Plaintiffs are and were at all material times the persons now and then living entitled to grant timber rights pursuant to the Forest Resources and Timber Utilisation Act (Cap. 90) in respect of certain customary land situated at Kazukuru New Georgia Western Province and commonly known as Kazukuru Right Hand Land;

(b) (i) The Plaintiffs have executed a valid agreement for timber rights in the prescribed form dated the 11th day of November, 1988 in respect of customary land situated at Kazukuru New Georgia Western Province and commonly known as Kazukuru Right Hand Land;

(ii) In the alternative the Plaintiffs and one W.G.Paia (now deceased) have executed valid agreement or agreements for timber rights in the prescribed form, namely, the agreement referred to in paragraph 1(b)(i) above and a further agreement dated the 28th day of June, 1988 in respect of customary land situated at Kazukuru New Georgia Western Province and commonly known as Kazukuru Right Hand Land;

(c) The Second Defendant, by a letter dated 21st November, 1988 addressed to the Provincial Secretary Western Province and signed on behalf of the Permanent Secretary for Natural Resources enclosing the agreement or alternatively a copy of the agreement referred to in paragraph 1(b)(i) above, made a valid recommendation pursuant to section 5E of the Forest Resources and Timber Utilisation Act (Cap.90) that the agreement referred to in paragraph 1(b)(i) above be approved;

(d) (i) By execution of the prescribed Form III dated 23rd November, 1988 the Third Defendant has pursuant to section 5F of the Forest Resources and Timber Utilisation Act (Cap. 90) validly approved the agreement referred to in paragraph 1(b)(i) above;

(ii) In the alternative by execution of the prescribed Form III referred to in paragraph 1(d)(i) above and by the further execution of a prescribed Form III dated 30^th August, 1988 the Third Defendant has pursuant to section 5F of the Forest Resources and Timber Utilisation Act (Cap.90) validly approved the agreements referred to in paragraph 1(b)(ii) above;

(iii) In the further alternative, the Plaintiffs are, subject only to the proper exercise of ministerial discretion by the Third Defendant, (or alternatively The Minister of Natural Resources), entitled pursuant to the provisions of the Forest Resources and Timber Utilisation Act (Cap. 90) to ministerial approval of the agreement, or alternatively the agreements, referred to in paragraph 1(b) above;

(e) The First Plaintiff is, subject to the proper exercise of his discretion by the Second Defendant and subject to payment of the prescribed fees, entitled pursuant to the provisions of the Forest Resources and Timber Utilisation Act (Cap. 90) to the grant of a timber licence in respect of customary land situated at Kazukuru New Georgia Western Province and commonly known as Kazukuru Right Hand Land."

On the basis of those declarations, the plaintiffs sought orders of mandamus as follows:

"3 (a) In the event that the declaration sought in paragraph 1 (c) above is not made an Order of mandamus that the Second defendant pursuant to the provisions of the Forest Resources and Timber Utilisation Act (Cap. 90) recommend to the Third Defendant (or alternatively the Minister of Natural Resources) that approval be given to the agreement or agreements referred to in paragraph 1(b) above;

(b) In the event that the declaration sought in paragraph 1(e) above is made an Order of mandamus that the Second Defendant pursuant to the provisions of section 5 of the Forest Resources and Timber Utilisation Act (Cap. 90) do forthwith either:

(i) Grant a timber licence to the First Plaintiff in respect of Kazukuru Right Hand Land; or

(ii) If the Second Defendant proposes to reject the First Plaintiff's application for a timber licence in respect of Kazukuru Right Hand Land, hear the First Plaintiff as to why such timber licence should be granted, and, if the Second Defendant then still proposes to reject the said application, communicate his reasons for rejection."

The fourth defendant counterclaimed for two declarations:

(a) The fourth defendant is and was at all the material times a representative of his late father, Willie G. Paia, and the Voramali tribe the winning litigants in Civil Case No. 6 of 1979 before the Western Customary Land Appeal Court in respect of certain customary land situated at Kazukuru New Georgia Western Province and commonly known as Kazukuru Right Hand Land.

(b) The second plaintiffs, except for Bisili, are and were not members of the Voraniali tribe which are the landowning tribe and therefore they are not customary landowners of the Kazukuru Right Hand Land."

and on the basis of these declarations he sought the following orders:

(a) That the Kalikogu Chiefs committee, constituted by its chairman, members and secretary their servants or agents be restrained from making a claim on the customary ownership of the Kazukuru Right Hand Land, the Bareke - Bao - Piraka portion and interfering with any economic development on the land initiated by the members of Voramali tribe.

(b) That the Kalikogu chiefs committee make an undertaking to prevent any of the Kalikogu peoples, their servant or agents from claiming ownership of the Kazukuru Right Hand Land or any part thereof and from interfering with any economic development on the said land by members of the Vorarmli tribe."

Held:

(1) The purpose of the original Forest and Timber Act and Part IIA of the amended Act is to ascertain the persons who are entitled to grant timber rights and approve an agreement by which the logging company acquires those rights from them. Ownership of customary land and ownership of timber rights are not the same thing. Frequently the same people are involved because the ownership of the land will usually have included the rights to the timber on the land but many people who do not have ownership rights to the land have rights over the timber.

(2) The correct interpretation of the 1984 amendments to the Forest and Timber Act is that two separate agreements are required. One is an agreement where the company acquires the timber rights from the persons entitled to grant them. The second is a separate agreement between the company, the appropriate Government, and the Area Council on behalf of the landowners for the payment of a share in the profits to the landowners and for representation of the Government in the management of the venture.

(3) Thus, under section 5C the Area Council has to fix two meetings. In the first meeting the Area Council, appropriate Government and the company decide the terms of representation of the Government and the allocation of shares in the profits. If these matters are not settled satisfactorily the matter ends there and the Area Council must recommend the rejection of the application. The Commissioner of Forest Resources must act on such a recommendation. The second meeting, which can only take place if there has been a satisfactory arrangement reached in the first meeting, is to determine the identity of the persons entitled to grant timber rights. Thus, where the timber rights are owned by people who are not the landowners, their ability to grant those rights to others cannot be exercised unless and until the agreement has been made on behalf of the landowners and by the appropriate Government.

(4) The proper interpretation of section 5B(1) is that any person wishing to acquire timber rights on customary land under section 5B(1)(a) must also agree to a scheme for profit sharing and Government representation under section 5B(1)(b). Read as a whole, the provisions of Part IIA envisage one procedure whereby both agreements are required, and not two separate procedures for joint ventures and projects that are not joint ventures

(5) In relation to the first agreement signed by only four of the trustees the Ministry was right to seek a new agreement. The position of the trustees was covered by the Trustee Act 1925, and the rule was that some only of the trustees cannot act without the agreement of the remainder. The second agreement was signed by all 10 surviving trustees and since, applying the Trustee Act 1925, the powers given to trustees may be exercised by the surviving trustees, the agreement was valid. However, that was the position in November 1988 and it may be that the position has changed by the time of any future application under s.5B. For that reason the declaration sought by the plaintiffs would be refused.

(6) For the same reason the declaration sought by the fourth defendant in his paragraph 2(a) would also be refused, and the declaration sought by him in paragraph 2(b) would be refused as it had no relevance to the case.

(7) The matters raised by the plaintiffs in paragraphs 2(b), (c) and (d) of their claim should not arise until the first meeting has been held and an arrangement made. This had not been done and so the declarations and claims for mandamus would be refused.

Cases referred to:

Green v, Premier Glynrhonwy State Co. [1928] 1 K.B. 561; 97 L.J.K.B. 32; 138 L.T. 90

J. Sullivan and D. Campbell for First and Second Plaintiffs
R. Teutao for Attorney General and for Second and Third Defendants
T. Kama for the Fourth Defendant

WARD CJ : This case involves the timber rights on Kazukuru Right Hand Land in New Georgia; a tract of land that has spawned a large number of court cases both in relation to land ownership and timber rights. In July 1987 a meeting was held between the various tribal representatives of Kazukuru Right Hand Land to discuss an application by the Allardyce Lumber Company Ltd to log Kazukuru Right Hand Land.

At that meeting were representatives of the Kalikogu, Nusa Roviana, Dunde, Munda and Kindu people and they included six of the present second plaintiffs (Nos. 2, 3, 4, 5, 6 and 8). Not present were W.G. Paia, the father of the fourth defendant, and Bisili, the first of the second plaintiffs. It appears those two considered themselves as representatives of the Voramali tribe and dealt separately with Allardyce for the timber rights over the same land.

In November 1987 those two men approached Allardyce and suggested they make a formal application for permission to negotiate to acquire timber rights and that was done by Allardyce the same month. It was on Form I under the Forest Resources and Timber Utilisation Act. In that form, the persons/landowning group with whom preliminary discussions had been made were named as Willie Paia and Bisili and their lines. This was sent to the Roviana Area Council to determine the people entitled to grant timber rights but, before they had made that determination, it came to Allardyce's attention that other landowners were objecting to the fact that only W. Paia and Bisili had been named.

As a result, Allardyce asked them to reach a preliminary agreement with the others and, in February 1988, they were told that agreement had been reached and Sasae and Sakiri were appointed to represent the remaining persons entitled to grant timber rights.

Following discussions with those people, Heads of Agreement were drawn up, taken to the Forestry Division and signed by the parties on 25 February 1988. The parties were listed as:

1. W. Paia and Bisili.

2. Sasae and Sakiri "being duly appointed representatives for the group of ten persons entitled to grant timber rights as confirmed by the CLAC on 1st and 2nd March 1984".

3. Allardyce.

The court case there referred to assumes some importance in this case. It was an appeal brought under section 5D of the Forest and Timbers Act and the determination of the court was that:-

"The persons who are entitled to grant Timber Rights in Right Hand Land Kazukuru area bounded as explained above are:

1. W.L. Paia

2. A. Bisill

3. J. Roni

4. E. Hiele

5. R. Ege

6. S. Sasae

7. E.T. Daga

8. J. Sakiri

9. J. Poza

10 Zongahite

11. S. Pato

12. J. Zinihite."

The Heads of Agreement, comprising "the consensus reached this day between the parties", included the statement that all objections lodged with the authorities were withdrawn. Considerable objections and problems arose in the subsequent weeks, however.

On 18 March 1988 the Roviana Area Council determined the persons entitled to grant timber rights on Kazukuru Right Hand Land and issued a Form II certificate naming the same twelve people as named in the CLAC case of March 1984. Alongside the name of R. Ege is written 'deceased' and alongside J. Zingihite is written 'withdrawn'.

Considerable correspondence followed between the people named, the administration officer Roviana, the Chairman of the Area Council and others.

As a result it became apparent that a division had formed between the Dunde and Kalikogu people. Many of the people named as having the timber rights are from these two tribes and the Area Committee listed them in the following way -

W.G. Paia, Alfred Bisili, Remisi Ege, Simion Sasae and Edwin T. Daga as Dunde, John Roni, Judah Sakiri, Esau Hiele, Jonathan Poza and Simion Pato as Kalikogu, Zongahite as Bebea and Zingihite as Munda.

The fourth defendant, Hugh Paia, disputes all this and insists that there is only one tribe that owns Kazukuru Right Hand Land namely Voramali. Of those listed above, only his father and Bisili are members of that tribe.

The reason he insists that landowning rights are important in this case is that, in June 1988, the five people named above as Kalikogu together with Zongahite wrote to the administration officer Munda, stating that the area of Kazukuru Right Hand Land within a line from the Bareke River to Bao and then to Piraka is Kalikogu land and is to be excluded from the logging arrangements with Allardyce because the so-called Kalikogu chiefs committee wanted to negotiate with another logging company, Lin Kali.

Allardyce, who received a copy of that letter, continued to negotiate in the hope that such differences could be resolved. They dealt with W.G. Paia, Bisili and Sakiri and were assisted by the Chairman of the Area Council. By late June it appeared the differences had been resolved and so a meeting was arranged for 28 June, 1988, in Munda between Allardyce and the people named in Form II.

At the meeting itself, only four of the named people were present, W. Paia, Bisili, Sasae and E. Daga, but they and the Chairman of the Area Council told Allardyce they were there to execute the agreement on behalf of all the people named in Form II. A standard form logging agreement on Form IV was typed up and executed by the representatives present and witnessed by the third defendant. The understanding of the representative of Allardyce at that time was that the Dunde and Kalikogu people had agreed the Bareke-Bao-Piraka area should not be logged until the Kalikogu people agreed. At the meeting W.G. Paia made a speech in which he referred to the fact that area had been excluded and expressed the hope it would be possible for Allardyce to log it in the future.

Shortly after that meeting, on 7 July, 1988, W.G. Paia died and, at a meeting of some of the Voramali tribe, Hugh Paia (the fourth defendant) and Bisili were appointed as the representatives of the Voramali tribe.

The fourth defendant claims that he has a right to be appointed in this way in place of his father and it will be necessary to consider that later.

However, from that time onwards, there was consistent intervention by the fourth defendant on the general ground that he believed his father would never have agreed to the exclusion area (the Bareke-Bao-Piraka triangle) because he felt that involved him in giving up his claim to the rights to ownership of that land. Again I must return to this later as there has been frequent confusion of land ownership rights and timber rights.

At about the same time, the Kalikogu representatives also wrote to Allardyce complaining that the Form IV agreement had not been signed by them all and alleging amongst other things that the Dunde people were deciding things with Allardyce without their knowledge and asking Allardyce not to send it to the Forestry Officer.

Meanwhile, notwithstanding, the chairman of the Area Council certified under section 5C to the Commissioner of Forestry Resources that there had been no appeal and confirming the names of the people named in the CLAC decision of March 1984.

The Form IV agreement was submitted to the Provincial Executive and the third defendant (at that time Provincial Prime Minister and Minister of Natural Resources) signed approving it on Form III on 30 August 1988 although that form incorrectly included the members of the Area Council as representatives.

Although Allardyce attempted to have a licence issued, I accept in good faith, it became obvious this would not happen and they would need to start again. Therefore on 24 October 1988 they wrote to the 125 remaining people named in the 1984 decision explaining the situation and pointing out that they needed to confirm that those people wanted Allardyce to log Kazukuru Right Hand Land.

On 27 October 1988, a meeting was held at Munda at which the ten survivors of the persons named by the CLAC signed a document agreeing to execute a standard logging agreement and acknowledging that all objections to the licence were withdrawn. The signatures were witnessed by the Minister of Lands and Natural Resources for the Western Province.

After some concern about the true position of Bao and whether the exclusion of the area should be specified in the agreement, a meeting was held on 11 November 1988 at Munda and the surviving 10 persons named executed a standard Form IV agreement and their signatures were witnessed by the Western Province Minister of Lands and Natural Resources.

That agreement was delivered to the Commissioner of Forest Resources on the 15th November. On 18 November a letter was sent to the Area Council by one R. Hiti "for the Commissioner of Forest Resources" asking them to identify the representatives of the two dead trustees and that they also must sign.

Strangely, on 21 November the same man wrote "for the Permanent Secretary, Ministry of Natural Resources" to the Provincial Secretary enclosing a Form III and the agreement and asking the Minister to sign the Form III and return it so that the licence can be released."

It is on that letter the first claim for mandamus is based. The Court is asked to decide whether that constitutes a recommendation under section 5E or, if it does not, whether the Commissioner of Forest Resources must make such a recommendation because he has all the information required under the section.

If it is correct that the letter of 21 November is a recommendation under section 5E then the Form III signed by the Premier of the Western Province on 23 November 1988 must, the plaintiffs say, be the Minister's approval under section 5F.

As a result of the letter of 18 November from Hiti, the Area Council held a meeting on 23 November and purported to appoint H. Paia and R. Mamu as the representatives entitled to grant timber rights in place of W.G. Paia and R. Ege.

On 25 November, the fourth defendant wrote to the Chief Forestry Officer claiming the whole agreement was illegal and claiming that, as he was a landowner, he would not agree to changing the that boundaries of Kazukuru Right Hand Land and stating he would not sign.

On 6 December, he wrote to the Chairman of the Area Council. I set that letter out in full as it appears generally to state the case that has been presented here by the fourth defendant.

"The Chairman

Roviana Area Council

Munda.

Dear Sir,

SUBJECT: YOUR LETTER OF 5/12/88

1. I refer to your letter of 5/12/88 to the Chief Forestry Officer and dated as above. In response I have these to say:-

(a) I agree that the PIRAKA-LODUKOMA - MBAEROKO-ENOGAE -PIRAKA are the correct boundaries of the Right-Hand Land as determined by the CLAC in Case 6/79 and by the High Court in Case 2/80 not the Roviana Area Council which is a non-legal institution.

(b) Nowhere in its decision of 5/3/84 did the CLAC state that the portion PIRAKA-BAREKE-BAO-PIRAKA be set aside as "Reservation Area". Further the late W.G. Paia died on 7th July 1983. The decision to redraw the boundaries and to mark in the "reservation area" was made on 27th October, 1988. The late W. G. Paia could not possibly get out of his grave to agree to the "reservation area" on 27/10/88. The Chairman of The Roviana Area Council did not get his facts right and therefore he had made a false statement.

(c) There is no confidentiality about the reservation of the small area "PIRAKA-BAREKE-BAO-PIRAKA". The late W. G. Paia never and I repeat never had agreed to have such an area reserved. If he did then he would have been in breach of the High Court decision. He defended the ownership of the Right-Hand Land right up to the time of his death.

The very reason why the small area was claimed to be reserved is simply because the Kali Kalikoqu Chief's Committee at their meeting on 24/5/88 illegally claimed that the area belonged to them; and they announced that they would object to Allardyce's Logging on the Right-Hand Land if that small area was not marked "Reservation Area" To comply with their illegal claim the Allardyce Lumber Company manipulated the situation and initiated to have the boundaries redrawn. The Roviana Area Council was also manipulated to agree (illegally) to the redrawn boundaries, which it did. This simply is the motive behind the whole thing.

(d) By copy of this letter I wish to point out to the Chief Forestry Officer that it would be unwise of Government to be involved in what clearly are illegal activities and which are obvious in the current case.

I wish to reiterate finally that our Landowning group - the Voramali Right-Hand Land Tribe strongly detest

(a) the manipulatory move involved in the whole case.

(b) the action which had led to the redrawing of the boundaries of the Right-Hand Land.

For the above reasons we forbid Allardyce Company to log the trees which are obviously standing not in the air but on our land. For your information the matter has been routed to the High Court Chamber.

Hugh K. Paia

(Spokesman and Tribally Chosen Representative of the Voramali Right-Hand Land Tribe)"

On 22 December Allardyce, wrote to the Permanent Secretary, Ministry of Natural Resources, attention Commissioner of Forest Resources, asking for some action. On the same day a letter was written by the Chairman of the Area Council to the Commissioner explaining various matters and explaining that W.G. Paia had agreed to the exclusion area when he spoke at the meeting in Munda on 28 June, 1988.

On 27 December, the ten signatories to the agreement wrote to the Commissioner pointing out that they all signed the agreement and concluding "We further confirm that there is no dispute from our side needs to clear or can delay the issuing of the licence to Allardyce Lumber Co." They later sent the same letter to Allardyce.

On 29 December, the fourth defendant wrote to the Chief Forestry Officer objecting again to the licence and referring to his claims that the boundaries of Kazukuru Right Hand Land were being redrawn.

"I must tell you as I have already told you previously that under no circumstances must the licence be issued so long as the issue regarding the redrawing of the boundaries of the Right Hand Land which demarcated on "exclusion area" stands.

I am taking legal action against those who are involved in the redrawn boundaries and whilst this action is being taken it will be unwise for Government (Forestry Division) to be involved."

As a result, the Permanent Secretary, Ministry of Natural Resources wrote to Allardyce enclosing that letter and concluding with the suggestion " ............. you get in touch with the Voramali Tribe group including their spokesman Mr H. Paia to settle the issue and inform us when all land matters are settled."

On 10 January, 1989, Allardyce wrote to the Ministry of Natural Resources suggesting the agreement was valid and enclosing a licence fee of $2000 and a Banker's guarantee for $50,000 "as requested by your Ministry".

Considerable further correspondence took place between the various parties. The letters of the fourth defendant maintained his objection, became threatening and included wild claims against the Area Council.

I do not need to go into it further.

The position taken by the first, second and third defendants is, in effect, that they will abide the Court's decision. The Attorney General was represented in court by Mr Teutao who also spoke for the second defendant. The third defendant has indicated that he did not wish to appear but he served an affidavit on the other parties.

The fourth defendant, of course, disputes the claims of the plaintiffs.

His case consists of the following points. He disputes that his father would ever have agreed to the exclusion area as, by doing so, he would be acknowledging the Kalikogu's claims to own that land. He claims that the Voramali tribe own the land and only W. Paia and Bisili of the twelve nominated persons can represent the Voramali. He bases the Voramali ownership claim on case number 2/80. He also claims that he was validly nominated as a representative of the Voramali tribe to replace his father and, as such, must be a signatory to any agreement for the sale of timber rights. He claims also that the Dunde and Kalikogu people are not tribes or sub tribes. He also seemed to feel that it is not possible to grant timber rights over part of an area only. However, it appears he subsequently abandoned that stance.

He told the court that he was willing to sign a logging agreement but only if the Kalikogu people lifted their claim to land rights over the exclusion area. He suggests that, as Form IV refers to landowning groups, if the agreement is signed it will entitle the Kalikogu to land rights he claims they do not have.

Most events are undisputed in this case but there were some areas of dispute.

It has always been part of the fourth defendant's claim that his father, Willie Paia, would never have agreed to the exclusion area. On the evidence before me, I am satisfied that, on 28th June, he was aware of the exclusion area and agreed to it being left untouched until agreement could be reached with the Kalikogu people. I am equally satisfied that he made a speech to that effect.

As a result of the claims of the fourth defendant, a number of genealogies were produced to prove the claim of the second plaintiffs and to show that the fourth defendant was, in fact, not a matrilineal descendant of the tribal ancestors. Mr Sullivan for the plaintiffs contends that, as a result of section 231 of the Land and Titles Act, this court is not bound by decisions of customary courts and may decide the matter.

I do not rule on that. For reasons that will later become apparent, I do not consider a resolution either of the High Court's power in this or of the genealogies themselves is necessary for these proceedings.

Similarly, the fourth defendant has based much of his argument on the decisions in Civil Cases 6/79 and 2/80 which, he says, gave ownership of the whole Right Hand Land to the Voramali tribe. I do not need to rule on that and I decline to do so save to observe that a reading of the judgment in case 6/79 exhibited to Hugh Paia's affidavit shows that case was limited to consideration of the position and ownership of Mamanusi Hill and makes no ruling on the ownership of Kazukuru Right Hand Land as a whole.

There was considerable dispute about the tribes in the area and, in particular, whether the Dunde and Kalikoqu are really tribes or simply settlements and the position of the Voramali in relation to them. Again I have not heard sufficient argument to resolve that matter and do not consider it necessary to this case.

I now pass to the declarations and orders sought.

The plaintiffs seek a number of declarations:

"2. It be declared that:-

(a) The Second Plaintiffs are and were at all material times the persons now and then living entitled to grant timber nights pursuant to the Forest Resources and Timber Utilisation Act (Cap. 90) in respect of certain customary land situated at Kazukuru New Georgia Western Province and commonly known as Kazukuru Right Hand Land;

(b) (i) The Plaintiffs have executed a valid agreement for timber rights in the prescribed form dated the 11th day of November, 1988 in respect of customary land situated at Kazukuru New Georgia Western Province and commonly known as Kazukuru Right Hand Land;

(ii) In the alternative the Plaintiffs and one W.G.Paia (now deceased) have executed a valid agreement or agreements for timber rights in the prescribed form, namely, the agreement referred to in paragraph 1(b)(i) above and a further agreement dated the 28th day of June, 1988 in respect of customary land situated at Kazukuni New Georgia Western Province and commonly known as Kazukuru Right Hand Land;

(c) The Second Defendant, by a letter dated 21st November, 1988 addressed to the Provincial Secretary Western Province and signed on behalf of the Permanent Secretary for Natural Resources enclosing the agreement or alternatively a copy of the agreement referred to in paragraph 1(b)(i) above, made a valid recommendation pursuant to section 5E of the Forest Resources and Timber Utilisation Act (Cap.90) that the agreement referred to in paragraph 1(b)(i) above be approved;

(d) (i) By execution of the prescribed Form Ill dated 23rd November, 1988 the Third Defendant has pursuant to section 5F of the Forest Resources and Timber Utilisation Act (Cap. 90) validly approved the agreement referred to in paragraph 1(b)(i) above;

(ii) In the alternative by execution of the prescribed Form Ill referred to in paragraph 1(d)(i) above and by the further execution of a prescribed Form III dated 30^th August, 1988 the Third Defendant has pursuant to section 5F of the Forest Resources and Timber Utilisation Act (Cap.90) validly approved the agreements referred to in paragraph 1(b)(ii) above;

(iii) In the further alternative, the Plaintiffs are, subject only to the proper exercise of ministerial discretion by the Third Defendant, (or alternatively the Minister of Natural Resources), entitled pursuant to the provisions of the Forest Resources and Timber Utilisation Act (Cap. 90) to ministerial approval of the agreement, or alternatively the agreements, referred to in paragraph 1(b) above;

(e) The First Plaintiff is, subject to the proper exercise of his discretion by the Second Defendant and subject to payment of the prescribed fees, entitled pursuant to the provisions of the Forest Resources and Timber Utilisation Act (Cap.90) to the grant of a timber licence in respect of customary land situated at Kazukuru New Georgia Western Province and commonly known as Kazukuru Right Hand Land."

On the basis of those declarations, they seek orders of mandamus:

"3 (a) In the event that the declaration sought in paragraph I (c) above is not made an Order of mandamus that the Second defendant pursuant to the provisions of the Forest Resources and Timber Utilisation Act (Cap. 90) recommend to the Third Defendant (or alternatively the Minister of Natural Resources) that approval be given to the agreement or agreements referred to in paragraph 1(b) above.

(b) In the event that the declaration sought in paragraph 1(e) above is made an Order of mandamus that the Second Defendant pursuant to the provisions of section 5 of the Forest Resources and Timber Utilisation Act (Cap. 90) do forthwith either:-

(i) Grant a timber licence to the First Plaintiff in respect of Kazukuru Right Hand Land; or

(ii) If the Second Defendant proposes to reject the First Plaintiff's application for a timber licence in respect of Kazukuru Right Hand Land, hear the First Plaintiff as to why such timber licence should be granted, and, if the Second Defendant then still proposes to reject the said application, communicate his reasons for rejection."

The fourth defendant counterclaims for two declarations-

(a) The fourth defendant is and was at all the material times a representative of his late father, Willie G. Paia, and the Voramali tribe the winning litigants in Civil Case No. 6 of 1979 before the Western Customary Land Appeal Court in respect of certain customary land situated at Kazukuru New Georgia Western Province and commonly known as Kazukuru Right Hand Land.

(b) The second plaintiffs, except for Bisili, are and were not members of the Voramali tribe which are the landowning tribe and therefore they are not customary landowners of the Kazukuru Right Hand Land."

On the basis of these declarations he seeks the following orders-

(a) That the Kalikogu Chiefs committee, constituted by its chairman, members and secretary their servants or agents be restrained from making a claim on the customary ownership of the Kazukuru Right Hand Land, the Bareke - Bao - Piraka portion and interfering with any economic development on the land initiated by the members of Voramali tribe.

(b) That the Kalikoqu chiefs committee make an undertaking to prevent any of the Kalikoqu peoples, their servant or agents from claiming ownership of the Kazukuru Right Hand Land or any part thereof and from interfering with any economic development on the said land by members of the Voramali tribe."

It is clear that many of the problems that have given rise to this case stem from the state in which the principal Act has been left following a series of apparently haphazard and sometimes ill-conceived or amendments.

Equally the stand taken by the officials in the Ministry has been erratic and, sometimes, wrong.

Finally, it seems the advice by the Attorney General to the Permanent Secretary, Ministry of Natural Resources, lent support to a view that landowning rights were necessary to such a grant of timber rights and that Hugh Paia had a right to represent his father which, with respect, was wrong.

I pass now to the procedure for the acquisition of timber rights on customary land under the Forest Resources and Timber Utilisation Act.

The original Act did not specify any procedure for the acquisition of timber rights on customary land but, in 1977, a new Part IIA was added. That set out a procedure that was clearly directed at identifying the people entitled to grant timber rights. No reference is made to landowning rights as having anything to do with the matter.

The next year[sic] prescribed forms were gazetted and already the unfortunate references to landowning groups begin to appear. However, the position is still clear that the procedure under Part IIA is for the acquisition of timber rights and the ascertainment of the people properly able to grant them.

In 1984 a major amendment of Part IIA took place by the Forest and Timbers (Amendment) Act I and it is here that the most confusing references to land ownership appear. Apart from two small amendments made by the Forest Resources and Timber Utilisation (Amendment) Act 1987, (incidentally, the first of a number of legislative documents that acknowledges the change of name made by the 1984 Act) the 1984 provisions remain in force.

Section 5B and 5C now read:

"5B (1) Any person who wants to carry on business in Solomon Islands as a timber exporter or sawmiller and who wishes to enter into an agreement whereunder -

(a) he acquires timber rights on customary land; and

(b) in consideration of that acquisition, he agrees to

(i) give to the appropriate Government, for payment to the owners of that customary land, such quantum of share in the profits of his venture; and

(ii) to allow the appropriate Government such representation in the of that venture, as may be settled under section 5C,

shall first obtain the consent of the Commissioner of Forest Resources to negotiate with the appropriate Government and the area council on behalf of such owners of the customary land, and thereafter make an application in that behalf in the prescribed form and manner to the Commissioner of Forest Resources.

(2) Upon receipt of an application under sub-section (1) the Commissioner of Forest Resources shall forward a copy thereof to the appropriate Government and to the appropriate area council.

5C (1) After receiving a copy of an application forwarded to it under section 5B an area council whose membership shall include persons having particular knowledge of customary land rights in the area affected by the application shall-

(a) fix a place within the area of its authority, and days, not being earlier than two months, or later than three months, after the day on which such copy is received -

(i) for a meeting with the appropriate Government and the applicant, in consultation with them, and settle at that meeting the quantum of share in the profits of the venture of the applicant, and the terms of the representation of the appropriate Government in the management of that venture; and

(ii) for a meeting of the area council to consider such application and to determine the matters specified in sub-section (4);

Provided that where the area council fails to secure the settlement referred to in subparagraph (i), no further action prescribed in this section shall be taken and the area council shall recommend to the Commissioner of Forest Resources the rejection of the application, and the application shall be rejected by him accordingly,

(b) if it secures such settlement forthwith give in such manner as it shall consider most adequate and effective to the public within the area of its authority and, in particular, to persons who reside within such area and appear to it to have an interest in the land, trees or timber in question, notice of -

(i) such application;

(ii) the parties to, and terms of, the proposed agreement; and

(iii) the time and place fixed for the relevant meeting under paragraph a(ii).

(2) Any notice given under sub-section (1)(b) shall require any person who has reason to believe that the persons intending to grant timber rights under the proposed agreement are not the persons, or all the persons, as the case may be, lawfully able and entitled to grant such rights to attend the meeting referred to in the notice and at such meeting to state to the area council the particulars of such belief and the reasons for it.

(3) At the time and place referred to in any notice under sub-section (1)(b) the area council shall meet and consider the application to which the notice relates. In considering the application, the area council shall hear any representations made to it in response to the requirement provided for in subsection (2) and shall take into account those representations and all other matters relevant to the application known or believed by the area council to be true.

(4) Upon the conclusion of its considerations under sub-section (3), an area council shall issue a certificate setting out -

(a) the quantum of share in the profits of the venture of the applicant for payment to the owners of the customary land, and the terms of representation of the appropriate Government in the management of that venture on behalf of those owners, as settled with the appropriate Government and the applicant; and

(b) its determination as to -

(i) whether the persons proposing to grant the timber rights in question are the persons, and are all the persons, lawfully able and entitled to grant such rights, and if not, who such persons are; and

(ii) whether such timber rights in any modified form, may be granted, giving particulars of such modification, if any.

(5) After giving such certificate, the area committee shall give notice thereof in the prescribed form and in a similar manner to that in which it gave notice of the relevant application under sub-section (1).

(6) The Clerk to an area council shall cause any certificate issued by it under this section forthwith to be forwarded to the Commissioner of Forest Resources.

Provided that such certificate shall be so forwarded through the appropriate Government."

A reading of those sections would suggest the procedure is clearly still to acquire timber rights on customary land but a new requirement is added. Under it, the applicant needs to agree to give some share in the profits to the appropriate Government for payment to the customary landowners and allow the appropriate Government also to be represented in the management of the venture. If he is willing to agree to that he must obtain the leave of the Commissioner to negotiate, not with the landowners or the persons entitled to grant timber rights as had been the case previously, but with the appropriate Government and the area council who presumably negotiate on behalf of the landowners despite the ambiguity in the passage in section 5B(1)(b) following paragraph (ii) which appears to suggest the applicant is to negotiate on their behalf.

Despite that mandatory requirement to obtain consent to negotiate there is no provision under which such consent is given. It appears to be inferred from the fixing of the first meeting by the area council as that is when the negotiation referred to in section 5B(1) takes place.

The meaning of the last phrase in section 5B(1) "............ and thereafter make an application in that behalf in the prescribed form and manner to the Commissioner of Forest Resources" is unclear. The use of the word "thereafter" suggests it is possibly referring to something different from the application for consent to negotiate. Such a meaning would certainly make more sense of the procedures in section 5C and, whilst it cannot affect the interpretation of the section, the marginal heading supports this view.

On the other hand, the phrase "in that behalf' suggests an application for consent to negotiate. Taking the words in their natural meaning, I feel this is the least strained interpretation and, with some reluctance, I take it in this sense.

That opinion is reinforced by the requirement that the application must be "in the prescribed form and manner" although the precise meaning of that is also not clear. There are prescribed forms but, save for the phrase itself, the Part is silent on the manner of the application. The same phrase is used in section 5E(c) and I shall refer to that later.

The form is in the Forest and Timbers (Prescribed Forms) Regulation 1978 which were made by the Governor less than six months after the 1977 Act came into force.

Regulation 2 states:

"Applications to the Conservator of Forests by any person wishing to acquire timber rights on customary land under section 5B ............ shall be submitted in the form prescribed by Form I in the Schedule hereto."

The Form 1 referred to is headed-

"Application for approval for negotiation to acquire timber rights (Section 5B)"

That form has not been amended since and, whilst the heading refers to the type of negotiations envisaged in the 1977 Act and not those in the 1984 Act, it is nonetheless clear it is an application relating to permission to negotiate.

Once that application has been received and forwarded to the area council and the appropriate Government, the area council has to fix a time and place for two meetings:

(1) In which the area council, appropriate Government and the applicant settle the quantum of the share in the profits and the terms of the representation of the appropriate Government in the management.

If those matters are not settled satisfactorily the application ends there and the area council must recommend the rejection of the application and the Commissioner must act on that recommendation.

(2) If there is a settlement, the area council must meet having given adequate notice to interested parties of the time and place of the meeting, the application to negotiate and the parties to and terms of the proposed agreement (to acquire timber rights). There is no requirement to give notice of the terms of the settlement reached in the first meeting.

The notice must require the attendance of any one who wishes to question the right of the persons proposing to grant the timber rights and at the meeting the council must hear and take into account their representations and all other matters relevant to the application to negotiate known or believed by the area council to be true.

Thus, since the 1984 amendment, the strange result is that the area council must still consider the application for consent to negotiate at its second meeting under section 5C(1)(a)(ii). Under the 1984 procedure, the negotiations will be between the applicant, the area council and the appropriate Government. They will have been completed by the time of that second meeting and the persons entitled to grant timber rights are not involved.

The area council must then determine whether the persons proposing to grant timber rights are the persons entitled to do so and are all the persons so entitled and whether the timber rights should be granted in any modified form. It then issues a certificate setting out the matters in subsection (4). That certificate must be publicised in the same way as had the notice of the meeting and must be forwarded by the Clerk to the Commissioner of Forest Resources through the appropriate Government.

The certificate is one of the prescribed forms in the 1978 Regulations which have not been amended to bring them into line with the 1984 Act despite amendments involving Form IV made in 1985 and 1986.

Clearly, if the area council is to comply with the requirements of section 5C(4), they need to add additional matters to that certificate relating to the quantum of profits and the representation of the Government.

Anyone aggrieved by the area council's acts or determinations under 5C may appeal under section 5D.

Section 5E sets out the next step for the Commissioner:

"5E When the Commissioner of Forest Resources has received a certificate issued under section 5C and has satisfied himself that -

(a) at least one month has elapsed since such certificate was issued; and

(b) no appeal under section 5D has been lodged against the issuing of such certificate or, if an appeal has been lodged, it has been finally disposed of; and

(c) an agreement for the granting of the timber rights referred to in such certificate has been duly completed in the prescribed form and manner and that the parties to, and the terms and provisions of such agreement accord with such certificate or, where there has been an appeal under section 5D relating thereto, the order of the Court determining such appeal,

the Commissioner of Forest Resources shall recommend to the Minister that approval under must this Part be given to such agreement."

His duties are clearly limited at this stage to checking the matters listed, i.e. that the time for appeal has elapsed and no appeal has been lodged or, if there has been an appeal, it is complete, that the agreement referred to in the area council's certificate is in the prescribed form and manner and that the terms and the conditions accord with the certificate or any appeal decision.

The requirement to be satisfied the agreement has been "duly completed in the prescribed form and manner" refers to the 1978 Regulation. Section 5G gives the Minister the power to make regulations for "(b) the form of agreements which may be approved under this Part and the manner in which they are to be area executed."

Regulation 5 of the 1978 Regulations provided that all such agreements must include the matters set out in a "Form of Agreements for Timber Rights" in the Schedule. Regulation 5 was replaced by a new regulation in 1985.

"Form of Agreement regarding Customary Land

5. An agreement for the sale of timber rights in customary land shall be in such form as prescribed in Form 4 of the Schedule."

The Form 4 set out in the Schedule was itself apparently replaced by Legal Notice Number 10 of 1986 although, as published in the Gazette, there is no reference to the power under which it is made, it still refers to the principal act by its old name and there is no date or certificate by the Minister. It seems, however, to be accepted as the present Form IV.

Thus, as I have stated, the matters the Commissioner must be satisfied about under section 5E are limited and, once he is so satisfied, he must recommend to the Minister that approval be given.

Section 5F reads:

"5F (1) Upon receipt of a recommendation made under section 5E and the relevant agreement, duly stamped, the Minister may complete a certificate in the prescribed form approving the agreement.

(2) The Commissioner of Forest Resources shall within 14 days of completion by the Minister of a certificate under sub-section (1) notify the parties to the agreement of such completion.

This makes it clear the Minister has a discretion as to whether he accepts the Commissioner's recommendation although the basis on which that discretion should be exercised is not specified. The certificate is Form III of the 1978 Forms and gives some indication because he certifies that the agreement has been made "in accordance with the provisions of 5B to 5F of the" Act.

That having been done and the Commissioner having notified the parties the Minister's certificate has been completed, Part IIA is silent as to what happens next.

There are two distinct matters the person wishing to set up business as a sawmiller or timber exporter needs to acquire: the timber rights and a licence. At this stage, he has acquired an agreement for the purchase of timber rights but he cannot utilise it until he has a licence. He must next seek a licence to fell trees and remove timber from customary land subject to timber rights granted under an agreement approved by the Minister under Part IIA by applying to the Commissioner under section 5.

Once the fees are paid, the Commissioner may decide whether to accept it or reject it. In exercising his discretion he is limited in the following way-

(a) if he rejects it, he must first have given the applicant an opportunity to be heard and, if he still rejects it, give the reasons for the rejection.

(b) if he accepts it, he must first be satisfied of the various matters set out in section 5(1A)(a), (b), (c) and (d).

That appears to be the position of the law under the 1984 amendment. How does it relate to this case?

There are two principal aspects in the determination of which lies the rather unsatisfactory conclusion of this case.

The first is raised by the fourth defendant and involves the relationship between the ownership of the land and of the rights under the Forest Resources and Timber Utilisation Act.

The second was raised at a late stage, having not been pleaded in any form, by Mr Teutao for the Attorney General and relates to the true meaning of section 5B(1) of the Act.

I deal first with the contention of the fourth defendant that ownership of the land is the important factor under this Act. I can sympathise to some extent with his view because of the appearance of the term in the 1984 amendment. Also, although the present Form IV provides for execution by the grantors of the rights "on behalf of" a clan or line and refers to them in the agreement simply as representatives, it suddenly provides under paragraph 31 for monthly payments of royalties to the "representatives of the landowners" and, in para 37, deals with disputes between the landowners and the Company over interpretation of the terms of the agreement to which the landowners as such were not parties.

However, it seems to me that the purpose of the original act and the purpose of Part IIA of the amended Act, despite the unfortunate additional wording of the 1984 amendment, is still to ascertain the persons who are entitled to grant timber rights and approve an agreement by Which the company acquires those rights from them.

The extraordinary but, I feel, clear result of the 1984 amendment is that there are two separate agreements. One is the agreement I have referred to where the Company acquires the timber rights from the persons entitled to grant them. The other is a separate agreement between the Company, the appropriate Government and the area council acting on behalf of the landowners for the payment of a share in the profits to the landowners and for representation of the Government in the management of the venture.

It has been stated many times before that ownership of customary land and ownership of timber rights are not the same thing. Frequently the same people are involved because the ownership of the land will usually have included the rights to the timber on the land but many people who do not have ownership rights to the land have rights over the timber.

Thus the first meeting under section 5C(1)(a)(i) is to secure satisfactory settlement of the terms of profit sharing and government representation. The parties to that agreement are the Company, the appropriate Government and the Area Council representing the landowners. The latter, who, it appears, have no right to negotiate themselves, may be the same as, or include some of, the people entitled to grant timber rights.

The second meeting is of the area council and can only take place if there has been a satisfactory arrangement reached in the first meeting. Thus, in a case where the timber rights are owned by people who are not the landowners, their ability to grant those rights to others cannot be exercised unless and until the agreement has been made on behalf of the landowners and by the appropriate government.

When the provisions of Part IIA are read in that way, and I am sure that is the only way in which they can be read, it is clear that the right to grant the timber rights and the identification of the people with that right is entirely separate from any mention of the landowners.

Once the agreement in the first meeting is reached, apart from the requirement to give notice of the application for consent to negotiate with the appropriate Government and the area council, the need to set out the terms in the certificate under 5C(4) and, it appears, a right of appeal against any act of the area council in the first meeting, the remainder of Part IIA deals exclusively with timber rights, the people entitled to grant them and the agreement to do so.

Those people are identified in Form 11 by the area council and are the only people who can enter that agreement.

The only reference to landowners otherwise is in Form IV. I can only conclude that the reference to landowners in paragraphs 31 and 37 of the standard form of agreement is intended to refer to the persons entitled to grant timber rights because the landowners, of course, are not parties to that agreement. The monthly royalties are the payments that should go to the representatives of the line owning the timber rights and must be distinct from payment of part of the profits of the venture which would be ascertainable at a much later stage. Similarly any disputes over the agreement must be between the parties to it.

The second main point I must consider is the meaning and purpose of section 5B(l).

Mr Teutao suggests that any person wishing to enter into an agreement to acquire timber rights on customary land must also agree to the scheme for profit sharing and government representation referred to in 5B(1)(b).

Mr Sullivan urges the Court that this is not so. He points out that neither Allardyce nor the ten second plaintiffs intended to enter into such an agreement and so they were not bound by those provisions.

He suggests the section can be read that way as it stands. Alternatively, it is suggested this is a case where the word "and" at the end of paragraph (a) should be read as "or".

As with all rules of statutory interpretation, it only comes into play if the wording of the act is not clear but it is a clearly accepted rule that in order to carry out the intention of the Legislature, it may be necessary to read one for the other.

In Green v. Premier Glynrhonwy State Co. [1928] 1 K.B. 561, Sumner LJ said at page 568:

"You do sometimes read 'or' as 'and' in a statute but you do not do it unless you are obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'".

Despite considerable misgivings about the wording of the 1984 Act generally, I find it impossible to accept that the wording of this part of section 5B(1) is unclear. However, it could conceivably be read as meaning that a person who wishes to acquire timber rights and also a person who wishes to acquire timber rights within a profit sharing scheme must both apply for consent.

Had the Legislature intended such a meaning one would hope they would have expressed it more clearly. If that reading is correct they have simply added an extra voluntary procedure whilst leaving it open to apply generally under the 1977 procedure. It would appear that the first plaintiffs here have, in fact, simply followed the 1977 Act. Even if the authorities here have also continued to use the old procedure exclusively since 1984, as I am told is the case, I cannot accept that the Act intended such a result.

If the provisions of Part IIA are read as a whole they do not envisage two separate procedures, one for joint venture projects and another for projects that are not joint ventures.

Two separate meetings are required under section 5C for two separate agreements but they are both needed for the procedure as a whole to continue. The proviso to section 5C(1) makes it perfectly clear that the intention is to have both or none at all.

Equally, if I apply Mr Sullivan's suggestion of reading 'or' for 'and', section 5B does not make sense under either para (a) or (b).

Under the 1977 amendment, section 5B read-

"5B (1) Any person carrying on business in the Solomon Islands as a timber exporter or sawmiller who wishes to enter into an agreement whereunder he acquires timber rights on customary land shall first obtain the consent of the Conservator to carry on negotiations and thereafter make application in that behalf in the prescribed form and mariner to the Conservator."

The negotiations referred to there were clearly with the persons entitled to grant timber rights and, ever since 1984, that appears to be how it has been interpreted. However, the wording of the 1984 amendment makes it clear the negotiations referred to are not with these people but with the appropriate government and the area council on behalf of the owners of the customary land who are to receive the share of the profits. They do not apply to the persons entitled to grant timber rights except insofar as they may also be landowners.

If the section is read using only paragraph (a) the applicant company is required to seek leave to negotiate with two bodies with whom no agreement is to be made. Similarly if it is read only using paragraph (b) it simply does not make sense at all.

Passing now to the declarations sought by the plaintiffs, those numbered 2 (b) (c) and (d) all relate to the validity of the agreement on Form IV or the acts of the Commissioner and Area Council under sections 5E and 5F.

As I have already explained, the agreement to grant and acquire timber rights should not have been considered nor steps taken to ascertain the persons entitled to grant those rights until and unless a settlement not has been reached under section 5C(1)(a)(i). A meeting to reach such an agreement should have been the be first step by the Area Council after it received a copy of the application to negotiate. They failed to do this and, instead, proceeded straight to the next meeting. The Company and the Provincial government who should have been the other parties to that agreement acquiesced in that matter.

The making of a declaration is discretionary and I decline to make those sought in paragraphs 2(b), (c) or (d). The matters involved there should not arise until the first meeting has been held and a settlement reached. The declaration in 2(e) follows on those and so I also decline to give that.

The declaration sought by the plaintiffs in paragraph 2(a) and that sought by the fourth defendant in to his paragraph 2(a) stem from the same point. As was outlined earlier, the Area Committee named twelve as people as having the right to grant timber rights. They based that on the judgment of the CLAC in 1984 and there were no appeals lodged against that decision. By the time the Area Council made that determination, one of the twelve had already died. By the time the second agreement was executed on 11th November 1988 another had died.

It is contended on behalf of the fourth defendant and apparently supported at least on one occasion by the Permanent Secretary in the Ministry of Natural Resources that an agreement signed by the surviving persons would not be valid and two persons would need to be appointed to replace the dead men. Mr Paia has brought evidence that he was "appointed" by a meeting of some members of his tribe to represent his father.

The Act gives no guidance on this point. It would appear that the Area Council could effectively replace the deceased member with a new representative by the simple process of adding him as one of the people they feel are by custom entitled to grant timber rights. Subject to any objection under section 5C(2) and other relevant matters, they could then include the new person in their determination under section 5C(4)(b).

In this case, they had named twelve people and at the relevant time, ten of them survived. Any persons so named who sign the agreement will be the people who receive the payments as representatives of their clan or line. As such they are clearly in a fiduciary relationship and a constructive trust is set up.

Whilst their position derives from customary rights, the representative fights by which they have to sign such an agreement and to receive the payments are entirely statutory. I feel the position is covered by the existing law on Trustees.

Returning to the earlier agreement signed only by four of the, then, eleven survivors, it has long been the position in Equity that some only of the trustees cannot act without the agreement of the remainder rider. There was no evidence of such agreement by the remainder and so the Ministry was right to seek a new agreement.

The second agreement was signed by all the, then, ten survivors. The Trustee Act, 1925, applies in Solomon Islands by paragraph I of Schedule 3 of the Constitution. By section 18, the power given to two or more trustees may be exercised by the survivor or survivors of them.

That goes a long way to meeting the declaration sought by the plaintiffs in 2 (a). However, it must be remembered that was the position on 11th November 1988 in relation to the agreement with Allardyce. There is no guarantee the position will be preserved. By the time of any possible future application under section 5B, the Area Council may for good customary reasons consider some other person has the right to represent the people previously represented by the people who have died.

Thus I cannot make the declaration sought by the plaintiffs in paragraph 2(a). For the same reasons I cannot make the declarations sought by the fourth defendant in his paragraph 2(a).

Thus I refuse the application by the plaintiffs for any declaration in para 2. I equally refuse to make the orders for mandamus sought in paragraph 3.

I refuse to make the declaration sought by the fourth defendant in paragraph 2(a). The declaration in paragraph 2(b) has, for reasons I have already explained, no relevance to the question raised by this case and I refuse to make it also.

I am not satisfied I have heard sufficient evidence to make the orders sought in paragraph 3 of the fourth defendant's notice of motion and I therefore dismiss that application.

This rather unsatisfactory result was not really anticipated when I was addressed on costs. I shall adjourn to allow counsel to address me on costs. If counsel agree, that may be by written submissions to assist counsel for the plaintiffs.